State lawmakers across the country proposed legislation in 2017 with the stated intent of reaffirming the First Amendment guarantee of freedom of speech on college campuses. Legislation was proposed in at least seventeen states, passed in seven, failed in three, and is still pending in at least seven. Much of this legislation requires campuses within the state to create or update policies adhering to principles of intellectual diversity, the free exchange of ideas, and other ideals while also restricting the ability of campuses to designate specific free speech zones. Some bills, based explicitly on the Campus Free Speech: A Legislative Proposal (Goldwater Proposal) proposal from conservative think-tank the Goldwater Institute, include provisions that would prevent a campus from disinviting a speaker invited by any member of the campus community along with requirements for campuses to enact sanctions against students who “disrupt” speakers or events. The events in Charlottesville on the University of Virginia campus earlier this month, coupled with data from a Gallup poll that shows that the majority of Republicans believe campuses are too liberal, portend another dynamic year for free speech on campus, and more legislation concerning campus free speech will almost certainly follow in 2018.

The practice of designating free speech zones, first used on college campuses during the protests against the US involvement in the Vietnam War, has grown increasingly controversial. Proponents argue that free speech zones are a constitutionally valid application of the time, place, and manner allowance provided in Ward v. Rock Against Racism and that they ensure that those representing minority or marginalized views on controversial topics will have dedicated and protected space from which to make their voices heard. Opponents, however, assert that policies requiring registration and advance notification create unconstitutional barriers to the exercise of free speech. At least one recent court case has been filed in hopes that the US Supreme Court will make a definitive ruling as to their constitutionality.

Among the most troubling components of the Goldwater Proposal is a provision that requires campuses to punish students who “disrupt” speakers, a term that is uncomfortably vague for many Democrat lawmakers. Sometimes referred to as a heckler’s veto, the authors of the Goldwater Proposal call for mandatory suspension for students who engage in protests that shut down or silence scheduled speakers more than once. Such sanctions may constitute violations of protesting students’ rights to free speech, and have been removed or softened from the final versions of most passed legislation.

Providing evidence that campus policies and procedures support fair and equitable practices in inviting speakers and appropriate considerations for student and participant safety are essential to re-establishing the public trust in our college campuses as crucial spaces for civil exploration of controversial topics. NASPA’s research and policy team fielded a survey this summer to collect data from our member campuses to provide evidence about the policies and practices our campuses are already using to ensure intellectual diversity and freedom of expression as well as student safety and respect for all individuals. While the scope of the survey was too small to provide a representative picture across the country, even limited evidence may help to quell the overwhelming – and largely anecdotal – concerns raised against our campuses.

State Free Speech Legislation in 2017

To date, North Carolina’s House Bill 527 (NC HB 527) is the only legislation passed into law modeled after the Goldwater Proposal. While the bill follows the Goldwater Proposal closely, it was altered – in ways one author of the Goldwater Proposal considered “weakening” – to remove the mandatory expulsion sanction for students who disrupt speakers more than once. Similar legislation was introduced in Louisiana (LA HB 269), where it was vetoed by the Governor, and in Texas (TX SB 1151), where it died in the state House in Committee after passing the state Senate.

Bills in Michigan (MI SB 350) and Illinois (IL HB 2939), specifically modeled after the Goldwater Proposal, were introduced in the spring and referred to committee. The bills would require campuses to report on disciplinary procedures taken against students who disrupt speakers, but does not mandate specific penalties. Similar legislation has been introduced in Wisconsin (WI AB 299 / WI SB 250) following the interruption of conservative speaker and former Breitbart editor Ben Shapiro at a talk given on the University of Wisconsin – Madison campus in November. An additional pair of bills proposed in Wisconsin (WI AB 440 / WI SB 351) that provides more proscriptive penalty guidelines for both students and faculty and staff who make “true threats” to inflict harm. Both the Michigan and Wisconsin state legislatures are in session throughout the year and these bills may be taken up in the fall, especially in light of the recent speaker cancelations at college campuses following the violence in Charlottesville.

Legislation passed in Colorado (CO SB17-062), Kentucky (KY SB 17), and Utah (UT HB 54) removes the ability of campuses to designate specific free speech zones. Similar legislation proposed in North Dakota (ND HB 1329) did not pass, though bills introduced in New York (NY SB 6126) and both chambers of the Washington legislature (WA HB 2223 / WA SB 5836) are pending. Legislation is also pending in Georgia (GA HB 471) and New Hampshire (NH HB 477) which would allow for any member of the campus community to engage in expressive activity, including the distribution of printed materials, spontaneously.

Tennessee Senate Bill 723 (TN SB0723) and California Assembly Concurrent Resolution 21 (CA ACR 21) require institutions to adopt policies consistent with the Chicago Statement, comprised by a committee of faculty members at the University of Chicago in January 2015 to articulate the University’s “commitment to free, robust, and uninhibited debate and deliberation among all members of the University’s community.” The bills do not include proscriptions for campus sanctions or mandate administrative response to free speech controversies on campus.

Virginia’s House Bill 1401 (VA HB 1401) is perhaps the least proscriptive of the laws passed in 2017, merely stating that colleges and universities may not abridge the constitutional rights of anyone to speak on campus. However, given that colleges and universities are already prohibited from abridging speaker constitutional rights, and that appropriate restrictions by institutions on the time, place, and manner of speech are constitutionally allowable, the law seems redundant.

The use of safe spaces and trigger warnings have become part of the controversy, prompting accusations of coddling students or shielding them from facing opposing viewpoints. Contrary to claims by critics, both safe spaces and trigger warnings are pedagogical tools designed to encourage students to engage with potentially offensive or traumatizing content. A forthcoming policy brief from NASPA will provides a thorough background on the history of safe spaces and brave spaces within the contexts of movement-building, academic theory, student support services, and the classroom. The brief will then explore campus-based research and case studies that exemplify the kinds of safe and brave spaces that work to increase the likelihood of participants engaging meaningfully with concepts they may find offensive.

The role of structural racism in the creation of laws and policies around who and which speech is protected on college campuses is largely absent from many conversations around campus free speech. Advocates for historically marginalized communities, however, point out the often-unseen racist underpinnings that influences public policy, from the framing of the Bill of Rights through to today. Challenges to the status quo and the pervasive white privilege embedded in US culture were during the 1960s Civil Rights Movement, and continue to be, frequently met with violence by both civilian and official police representatives. In light of this, there is room to question whether the doctrines of free speech are in actuality applied equally to all persons, or whether underlying structural racism has resulted in unequal protection.

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